184(3) Jurisprudence: a concoction of powers

Since December 31, 2016, when Chief Justice Mian Saqib Nisar assumed the highest judicial office in the country, the Supreme Court has heard a myriad of cases under Article 184 (3) of the 1973 Constitution. These cases, taken on by the Court under its suo motu jurisdiction, have involved issues ranging from the non-issuance of CNICs to transgendered persons to prohibiting the national flag carrier from decorating its liners with Markhors. It is imperative, at this stage, to identify the constitutional text from where the apex court assumes such a power and to assess whether these powers are viably derived or simply concocted to politicise an institution that was constitutionally intended to remain otherwise. This opinion piece argues for the latter.

The Article 184(3) of the 1973 Constitution confers original jurisdiction, the authority to hear a case at its initiation, to the Supreme Court. This jurisdiction, however, does not exist without certain preconditions. The text of Article 184(3) clearly stipulates that for the Court to have original jurisdiction on an issue, that issue firstly needs to be of public importance, and secondly, that issue must involve a violation of fundamental rights that are enshrined within the first chapter of the second part of the Constitution. More importantly, even at the satisfaction of the two aforementioned conditions, the text of the Constitution makes absolutely no mention of the power of the Supreme Court to hear and decide cases on its own motion, which in Latin translates to, suo motu. The only instance where the Constitution makes such a mention is when it defines the jurisdiction of the Federal Shariat Court in Article 203D (1).

These textual conditions become increasingly relevant when one peruses the nature and subject matter of the issues the Court is currently taking suo motu notices on. Leaving aside a handful of cases such as the one pertaining to the non-issuance of CNICs to transgendered persons, a sizable number of these cases do not fulfil either of the two conditions. The Court seems adamantly convinced that the Constitution considers the stamping of wild goat logos on the tails of national airplanes to be a gross violation of fundamental rights of the people of Pakistan, and warrants the expenditure of Court resources for its expeditious redressal. At least that is the view of its Human Rights Cell, the Supreme Court department that filed this application.

Naturally, the question that arises at this point is: from where exactly does the Supreme Court of Pakistan derive its power to hear and decide cases on its own? The answer, to put it very simply, is: not from the text of the Constitution, but an extravagantly expansive interpretation of it.

To achieve sustainable, democratic viability all measures that ensure reliance on representative institutions need to be taken. This emphatically includes going back to the judicial drawing board and revisiting our 184 (3) jurisprudence

This interpretation was first made in 1990 in Darshan Masih versus The State, when the Supreme Court empowered itself by holding that it has the authority to take up matters addressed to it through informal complaints and on their own motion. Prior to this, Article 184(3) only allowed for cases to be heard under the larger umbrella of Public Interest Litigation in which they had to be filed by an aggrieved party to be heard. Now, because of this arbitrary and over-reaching interpretation, rules were made lax for such cases. Parties were no longer classified as either complainants, petitioners, or respondents, and the Court was empowered to make general recommendations to public bodies to enforce remedies. Several cases followed in which this newly invented jurisdiction was affirmed and the Court, to this day, has continued to assume the role of a benevolent guardian who conducts fact-finding missions and inquisitorially passes general orders for all stakeholders.

The consequences of such a broad and arguably invasive interpretation are more manifest today than ever. Firstly, it violates the political question doctrine, the idea that courts have the authority only to hear legal and not political questions. Under the garb of public interest, the Chaudhry and the Nisar Courts have rendered the dichotomy between the legal and the political murkier than ever. Several matters decided under the Court’s suo motu jurisdiction either involve political questions or have implications that are inherently political in nature.

Secondly, excessive use of this power results in a blatant disregard for procedure and the doctrine of separation of powers. Suo moto cases operate free from procedural limitations of not just petitioners and aggrieved persons, but many times even precedent. They also allow for the Court to enforce remedies that should ideally be engineered by the legislature and administered by the executive. The Court undermines the process and disturbs well-established principles of the separation of powers, in the name of disseminating expeditious, and what often is a starkly populist iteration, of what it deems to be justice.

Lastly, the gratuitous exercise of this power also results in an increased reliance on not just non-democratic institutions, but also on unelected champions who wield powers that are largely unchecked and unaccounted for. The claim “we intervene because otherwise no work will get done” is made far too often without cognisance of the fact that it perpetuates a cycle that stimulates the weakening of already feeble democratic institutions. Leaving them with far less incentive to improve and the democratic process with insufficient time and freedom to foster an order in which un-elected messiahs need not enforce fundamental rights.

With the general elections barely more than a fortnight away, this is as appropriate a time as ever to initiate discourse on strengthening the democratic status-quo. As, for the first time in the nation’s history, the second consecutive democratically elected government concludes its term, much has been said about the viability of this democracy, or the lack thereof. One fact, however, remains incontrovertibly true: to achieve sustainable, democratic viability all measures that ensure reliance on representative institutions need to be taken. This emphatically includes going back to the judicial drawing board and revisiting our 184 (3) jurisprudence.

The writer is a senior law student at the Lahore University of Management Sciences (LUMS)